IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ROBERT J. CAULLEY, 

Petitioner, CASE NO. 2:11-CV-00195

JUDGE SMITH

v. MAGISTRATE JUDGE ABEL

MICHELE MILLER, WARDEN, 

Respondent.

OPINION AND ORDER

Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2254. This matter is before the Court on the instant petition, Respondent’s Return of

Writ and Supplemental Response, and the exhibits of the parties. For the reasons that follow, the

Petitioner’s Motion for Leave to Amend the Petition, Doc. 10, is GRANTED. Petitioner’s Request

for a Stay, Doc. 11, also is GRANTED. 

Petitioner is DIRECTED to keep the Court advised of the status of state court proceedings.

 FACTS and PROCEDURAL HISTORY

The Ohio Tenth District Court of Appeals summarized the facts and procedural history of this

case as follows:

Charles and Lois Caulley were found bludgeoned and stabbed to death

in their home on Stringtown Road in Grove City, Ohio, on Sunday,

January 16, 1994. The deaths were reported in a 9–1–1 telephone call

made by appellant, who explained that he had gone to his parents

house and found them dead. At the time of the elder Caulleys' death,

appellant was employed by his father in the family plumbing business,

C.J. Caulley Plumbing. A lengthy and extensive investigation by the

Franklin County Sheriff's office was unable to develop any physical

evidence from which to conclusively link anyone to the murder. No

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fingerprints were found on the knives used in the slayings, no

footprints detected other than those of the EMT personnel, and no

witnesses were found. Investigating officers pursued several leads

provided by tipsters, without success.

The investigating officers, however, remained suspicious of appellant

even while the investigation otherwise stalled for nearly three years.

The suspicions developed because of several perceived inconsistencies

between statements given by appellant after the murders. In addition,

several persons had noted that after the murders, appellant had a

scratch on his face and a bruise on his neck which looked like a thumb

print. Appellant explained the scratch by stating that his young son

had caused it. Authorities further concluded that appellant had both

the opportunity and motive to commit the crime, based upon

disagreements with his father over the future of the plumbing business,

the fact that appellant had, along with his two sisters, inherited

substantial amounts of money upon his parents' death, and that

appellant's sole alibi on the presumed night of the murder was

provided by his wife.

Almost three years after the murders, in December 1996, Franklin

County Sheriff's Detective Zachary Scott and Sergeant Tony Rich

flew to Houston, Texas, where appellant was employed as an

aeronautical engineer with Continental Airlines. They went to

appellant's workplace and requested that he voluntarily come to the

Harris County (Houston) Sheriff's office for an interview. Appellant

was transported in the officers' car and the interview began at

approximately 3:20 p.m. on the afternoon of December 3, 1996. After

a lengthy interview, which was punctuated by the arrival of appellant's

wife, appellant, over the vigorous protestations of his wife, produced

an incriminating statement which was tape-recorded by the officers.

Appellant stated that he had gone to his parent's home after attending

a hockey game on the night of Friday, January 14, 1994, where a

discussion with his father deteriorated into a confrontation, during

which his father pushed appellant causing him to fall onto and break

a table. According to appellant's statement, the argument thereafter

escalated until appellant hit his father with a baseball bat and then

stabbed him. When appellant's mother intervened, he struck and

stabbed her as well.

After appellant made his statement in Houston, the interviewing

officers telephoned Franklin County Assistant Prosecutor Dan Hogan,

who advised them that appellant could be arrested based upon his

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statement. Appellant waived extradition and was returned to

Columbus the following day.

Appellant's wife also flew to Columbus shortly thereafter. Again on

the advice of Assistant Prosecutor Hogan, she was subsequently

arrested by the investigating officers for obstruction of justice, based

upon her prior statements providing an alibi for appellant on the night

of the murders. The investigating officers attempted to use Celeste

Caulley's arrest as leverage to encourage appellant, who in the interim

had refused to give a more detailed statement, to resume his dialogue

with the investigating officers. Celeste Caulley was soon thereafter

released and the charges against her dropped upon the personal

intervention of Assistant Prosecutor Hogan. No further incriminating

statements by appellant appear to have emerged from this particular

phase of the investigation.

Appellant was initially charged with two counts of aggravated murder

with death penalty specifications and one count of aggravated

robbery. Counsel for appellant duly filed a motion to suppress the

incriminating statement made by appellant in the Houston interview,

based upon violation of the right to counsel and the generally coercive

nature of the interview. The trial court held an extensive suppression

hearing prior to trial and ruled that the statement was admissible.

The matter thereafter proceeded to trial before a jury. The evidence

introduced by the prosecution consisted first and foremost of

appellant's confession given to the investigating detectives in Houston,

in the form of an audiotape and a transcript. In addition, the

prosecution presented testimony and other evidence intended to

buttress the confession by demonstrating that the physical

characteristics of the crime scene conformed to appellant's description

in his confession as to how he committed the killings, and to

demonstrate that appellant's personal, financial and career

circumstances, as well as his strained relationship with his father and

mother, gave him a motive to commit the murders.

The principal witness for the prosecution was Detective Scott, who

testified extensively regarding the circumstances surrounding

appellant's confession when interviewed in Houston. Detective Scott

also testified generally about the course of the investigation

immediately after the murders and over the three years that intervened

between the crimes and appellant's confession. On cross-examination,

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Detective Scott agreed that during the course of his lengthy

investigation he had been unable to establish any physical evidence

linking appellant or anyone else to the crime, and that his continued

suspicion of appellant was based principally upon apparent financial

motive and appellant's reportedly strained relationship with his father.

This belief on the part of Detective Scott had been reinforced when he

sought assistance from the FBI in developing a profile of the killer.

The state also presented the testimony of former Assistant Prosecutor

Dan Hogan, who, in the interim, had taken a seat on the bench of the

Franklin County Common Pleas Court. Judge Hogan testified

extensively in order to explain his interaction with the investigating

detectives during appellant's interview, arrest, and subsequent

detention upon being transported to Columbus.

In addition, the state presented testimony of former employees of C.J.

Caulley Plumbing, who generally described appellant as not

particularly suited for the physical side of the plumbing business. Steve

Young, a former employee and master plumber, stated that he had left

the business when appellant returned to Columbus and began working

for his father full time. Young testified that he had previously turned

down an offer to buy the business himself and did not care to “carry”

appellant if appellant took over the business.

Several friends of the victims also testified regarding the generally

peaceful and well-regulated lives of the deceased couple, and their

sometimes strained relationship with their children, including appellant

and his wife. Friends also testified about the activities of the victims

on the night of Friday, January 14, 1994, the night on which the

prosecution postulated that the murders occurred, upon the victims

returning to their home at approximately midnight.

Forensic Pathologist Patrick Fardal, of the Franklin County Corner's

office, testified that he examined the victims on Sunday, January 16,

1994, the day they were found dead. Dr. Fardal concluded that both

victims died from a combination of stab wounds and blunt instrument

trauma to the head, although the precise cause of death could not be

isolated in either case, as any number of individual blows or wounds

could have proved fatal. Dr. Fardal's best estimate of the time of

death, however, did not completely coincide with the prosecution's

theory that the victims had been killed late Friday or early Saturday

morning prior to being found; with respect to Mr. Caulley, Dr. Fardal

concluded that he had died eight to twelve hours before examination

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on Sunday, and with respect to Mrs. Caulley, more than two and less

than twelve hours before examination. For both victims this would

have put the time of death between late Saturday night and early

Sunday morning.

The prosecution also presented, over objection, the testimony of Todd

Elkins, a prisoner formerly held in the Franklin County Jail with

appellant. Elkins testified that appellant had stated that he wished to

kill the assistant prosecutor in his case and had offered Elkins $10,000

to do so. Elkins testified that appellant planned to profit from the

resultant delay in trial to obtain bond and flee.

Defendant testified on his own behalf, stating that he had not gone to

his parents' home between leaving work Friday afternoon and

discovering the bodies on Sunday morning, when he went to their

home to borrow a tool. He stated that he had gone straight home after

the hockey game Friday night, and subsequent testimony by his wife

Celeste supported this alibi. Appellant described his interview with

Detective Scott and Sergeant Rich in Houston, and stated that his

confession in Houston was completely untrue and that he had only

told the deputies what they seemed to want to hear in order to gain

time to consult an attorney and avoid being indicted on aggravated

murder charges, as the deputies had threatened to do.

The defense also presented the testimony of Dr. Richard Ofshe,

described as an expert on the field of interrogation, and particularly on

the production of false or unreliable confessions induced by certain

interrogation techniques. Dr. Ofshe even-tually opined that the

techniques employed by the investigating officers in the present case

produced a strong likelihood of unreliable or false confession.

The jury ultimately rejected the aggravated murder charges, but

returned verdicts finding appellant guilty of murder in the death of his

mother and voluntary manslaughter in the death of his father. The jury

found appellant not guilty of aggravated robbery. Appellant was

sentenced to fifteen years to life on the murder conviction and ten to

twenty-five years imprisonment on the manslaughter conviction, to be

served consecutively.

Since appellant's sentencing on October 20, 1997, the present appeal

has been considerably delayed by disputes over whether appellant is

entitled to appointed counsel due to his alleged indigency. These

questions were addressed by this court in State v. Caulley (Sept. 9,

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1999), Franklin App. No. 98AP–74, unreported, and the matter is

now finally before us on appellant's direct criminal appeal. 

State v. Caulley, No. 97AP-1590, 2002 WL 392191, at *1-4 (Ohio App. 10th Dist. March 14, 2002). 

Petitioner raised the following assignments of error on appeal: 

ASSIGNMENT OF ERROR ONE

(a) WHEN TESTIMONY AT A MOTION TO SUPPRESS

HEARING SHOWS THE ACCUSED REQUESTED AN

ATTORNEY DURING CUSTODIAL INTERROGATION, AND

NONE WAS PROVIDED, THE TRIAL COURT ERRED IN

DENYING THE MOTION TO SUPPRESS THE STATEMENT,

CONTRA THE FIFTH, SIXTH AND FOURTEENTH

AMENDMENTS TO THE CONSTITUTION.

(b) WHEN TESTIMONY AT A MOTION TO SUPPRESS

HEARING SHOWS THE ACCUSED INVOKED HIS RIGHT TO

COUNSEL DURING INTERROGATION BY LAW

ENFORCEMENT OFFICIALS, THE TRIAL COURT ERRED IN

DENYING THE MOTION TO SUPPRESS THE STATEMENT,

CONTRA THE FIFTH, SIXTH AND FOURTEENTH

AMENDMENTS TO THE CONSTITUTION.

ASSIGNMENT OF ERROR TWO

WHEN AN ASSISTANT PROSECUTOR TESTIFIES IN THE

CASE IN CHIEF, AND DETAILS THE ADVICE HE GAVE

DETECTIVES DURING THE ARREST STAGES OF THE CASE,

THE RESULTING EFFECT WAS CONTRA THE FAIR TRIAL

RIGHTS OF THE ACCUSED, UNDER THE FOURTH, FIFTH,

SIXTH AND FOURTEENTH AMENDMENTS TO THE

CONSTITUTION.

ASSIGNMENT OF ERROR THREE

(a) WHEN TESTIMONY IS INTRODUCED BY THE

PROSECUTION THAT CLAIMS THE ACCUSED WAS

INVOLVED IN A CONSPIRACY TO HARM THE ASSISTANT

PROSECUTOR, AND THAT CLAIM IS SHOWN TO BE

UTTERLY GROUNDLESS, THE ACCUSED DOES NOT

RECEIVE A FAIR TRIAL, CONTRA THE FOURTH, FIFTH,

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SIXTH AND FOURTEENTH AMENDMENTS TO THE

CONSTITUTION.

(b) EVIDENCE OF THREATS CLAIMED TO BE MADE BY THE

ACCUSED AGAINST THE ASSISTANT PROSECUTOR, SHOWN

TO BE GROUNDLESS, ARE IMPROPER AS A MATTER OF

LAW, CONTRA THE FOURTH, FIFTH, SIXTH AND

FOURTEENTH AMENDMENTS TO THE CONSTITUTION.

ASSIGNMENT OF ERROR FOUR

WHERE THE RECORD AT PRE–TRIAL SHOWS THE DEFENSE

SPECIFICALLY REQUESTED CERTAIN EX–CULPATORY

MATERIAL FROM THE PROSECUTION, AND IT IS

SUBSEQUENTLY DETERMINED THE PROSECUTION DID

NOT SUPPLY SAID MATERIAL, THE EFFECT IS TO DENY

THE ACCUSED A FAIR TRIAL UNDER THE FOURTH, FIFTH,

SIXTH AND FOURTEENTH AMENDMENTS TO THE

CONSTITUTION.

ASSIGNMENT OF ERROR FIVE

EVIDENCE OF PLEA NEGOTIATIONS IS INADMISSIBLE IN A

JURY TRIAL; WHERE THE PROSECUTION INTRODUCES

DETAILED TESTIMONY OF PLEA NEGOTIATIONS, THE

EFFECT IS CONTRA THE FOURTH, FIFTH, SIXTH AND

FOURTEENTH AMENDMENTS AND EVID. R. 410(a)(5).

ASSIGNMENT OF ERROR SIX

WHERE THE RECORD REVEALS THAT THE CONFESSION

WAS INVOLUNTARY, THE ERROR IN ADMITTING IT AT

TRIAL RESULTED IN A VIOLATION OF THE FOURTH, FIFTH,

SIXTH AND FOURTEENTH AMENDMENTS TO THE

CONSTITUTION.

ASSIGNMENT OF ERROR SEVEN

DURING DELIBERATIONS THE TRIAL COURT COMMITS

ERROR IN ALLOWING THE TAPE TO BE VIEWED ON

NUMEROUS OCCASIONS BY THE JURY, OVER THE

OBJECTIONS OF THE DEFENSE, THEREBY UNDULY

EMPHASIZING THAT PARTICULAR EXHIBIT CONTRA THE

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SIXTH AMENDMENT.

Id. at *4. On March 14, 2002, the appellate court affirmed the judgment of the trial court. Id. On

August 7, 2002, the Ohio Supreme Court dismissed Petitioner’s appeal. State v. Caulley, 96 Ohio

St.3d 1467 (2002). 

On June 12, 2002, defendant-appellant, Robert J. Caulley, filed an

application to reopen his appeal and the judgment of this court

rendered in State v. Caulley (Mar. 14, 2002), Franklin App. No.

97AP-1590. 

State v. Caulley, 97AP-1590, 2002 31839216, at *1 (Ohio App. 10th Dist. Dec. 19, 2002). In Rule

26(B) proceedings, Petitioner asserted he had been denied effective assistance of appellate counsel

because his attorney failed to raise on appeal a claim that he was denied a fair trial because the trial

court refused to permit him to call Christie Tackett, Jason Friend, or Kim Kelson as defense

witnesses; and that he was denied effective assistance of trial counsel because his attorney failed to

request the trial court to call Ricky Nelson as a witness and failed to object to testimony of Judge

Hogan. See id. On December 19, 2002, the appellate court denied Petitioner’s Rule 26(B)

application. Id. On April 2, 2003, the Ohio Supreme Court dismissed Petitioner’s subsequent appeal. 

State v. Caulley, 98 Ohio St.3d 1515 (2003).

Petitioner also pursued post conviction relief. 

Defendant filed the present petition for post-conviction relief on July

27, 2001. The state did not respond until March 19, 2004, apparently

due to a failure of service. Defendant then filed an application for

DNA testing under R.C. 2953 .71 et seq. The court granted in part the

application for DNA testing on some of the suggested items from the

crime scene, but denied defendant's request that (1) a private

laboratory, rather than the State Bureau of Criminal Investigation

(“BCI”), perform the test, and (2) an independent expert observe

testing at BCI.

The DNA testing results from BCI eventually proved inconclusive.

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Defendant then filed a motion for leave to amend his post-conviction

petition, a submission of supplemental exhibits, and a motion for

additional DNA testing. Defendant also sought additional discovery

of the data results supporting BCI's summary DNA report. Without

conducting an evidentiary hearing, the trial court dismissed the

pending motions and the post-conviction petition itself.

State v. Caulley, No. 07AP-338, 2007 WL 4532671, at *1 (Ohio App. 10th Dist. Dec. 27, 2007). 

Petitioner timely appealed, raising the following assignments of error: 

ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ERRED BY APPLYING THE DOCTRINE

OF RES JUDICATA TO BAR CAULLEY'S FIRST, THIRD,

FORTH [sic] SIXTEENTH [sic], SEVENTEENTH [sic], AND

EIGHTEENTH [sic] GROUNDS FOR RELIEF.

ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT ERRED IN DISMISSING CAULLEY'S

POST-CONVICTION PETITION WHEN HE PRESENTED

SUFFICIENT OPERATIVE FACTS TO MERIT RELIEF OR, AT

MINIMUM, AN EVIDENTIARY HEARING.

ASSIGNMENT OF ERROR NO. III

THE TRIAL COURT ERRED IN DISMISSING CAULLEY'S

MOTION FOR LEAVE TO FILE AMENDMENTS TO HIS

POST-CONVICTION PETITION AS UNTIMELY WHEN HE

DEMONSTRATED GOOD CAUSE FOR ANY DELAY AS WELL

AS PREJUDICE TO CAULLEY.

ASSIGNMENT OF ERROR NO. IV

THE TRIAL COURT ERRED WHEN IT DENIED CAULLEY'S

POST-CONVICTION PETITION WITHOUT FIRST AFFORDING

HIM THE OPPORTUNITY TO CONDUCT DISCOVERY.

ASSIGNMENT OF ERROR NO. V

THE TRIAL COURT ERRED BY DENYING CAULLEY'S

MOTION FOR ADDITIONAL DNA TESTING BASED ON BCI'S

DNA TEST RESULTS ON THE FIRST SET OF ITEMS.

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Id. at *1-2. On December 27, 2007, the appellate court affirmed the judgment of the trial court. Id. 

On May 21, 2008, the Ohio Supreme Court dismissed Petitioner’s subsequent appeal. State v.

Caulley, 118 Ohio St.3d 1411 (2008). 

On February 6, 2008, defendant filed another application for DNA

testing of “all of blood evidence and hair evidence that was collected

at the scene,” with a supporting memorandum listing 21 items for

DNA testing. After the parties briefed the issue, the state filed a

supplemental response stating that the hair found in Lois Caulley's

hand at the crime scene, previously ordered to be DNA tested, had

been discovered. The parties agreed further DNA testing was

appropriate, and the state on May 8, 2008 filed a motion requesting

an order for DNA testing of the discovered hair and “limited further

testing of additional evidence in this case.”

Pursuant to the parties' agreement, the trial court on May 12, 2008

ordered Orchid Cellmark to conduct DNA testing on the discovered

hair and up to four representative human hairs from a sweatshirt in

evidence. The court further ordered, pursuant to the parties'

agreement, that BCI conduct DNA analysis of six items on defendant's

list: the sweatshirt, an H & R 20-gauge shotgun, a table leg, cartons

or packs of cigarettes, or both, a White Castle cup, and swabs

previously taken from an H & R .410 shotgun. Results from the tests

were filed with the court on August 15, 2008 and October 2, 2008.

The test results again were inconclusive but did reveal a partial DNA

profile from an “unknown male” on the 20-gauge H & R shotgun,

which had been found at the crime scene stacked with other items by

the victims' front door.

Based upon the test results, defendant on October 15, 2008 filed a

“Motion for an Order Requiring Alternate Suspects to Submit Oral

Samples Suitable for DNA Testing” in order to compare the DNA

profiles of two individuals, who defendant claimed were potential

suspects, to the “unknown male” DNA profile on the 20-gauge H &

R shotgun. Defense counsel contended at trial that one or both of the

individuals was involved in killing the victims in this case, but neither

“alternate suspect” was a defendant in the action against defendant,

and the trial court did not have personal jurisdiction over them.

According to defendant, the first “suspect,” who lived with his parents

next door to the victims, exhibited suspicious behavior before and

after the victims' murders; the second “suspect” purportedly bragged

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to several people about committing the murders and being a “burglar

for a living” who broke into residences and stacked items in one spot

before removing them. Defendant contended the “alternate suspects”

would have touched or handled the shotgun in question only if one of

them committed the murders. Thus, defendant argued, if the

“unknown male” DNA profile on the 20-gauge H & R shotgun

matches a DNA profile of one of the alternate suspects, it proves that

individual was the real killer and exonerates defendant,

notwithstanding his confession that he killed his parents. At the trial

court's urging, defendant attempted to have the “alternate suspects”

voluntarily submit oral samples for DNA testing. Although both of

them verbally agreed to provide samples, neither individual submitted

a biological sample for DNA testing.

On December 9, 2008, defendant filed a supplemental memorandum

with the trial court detailing his efforts to have the two alternate

suspects submit samples for DNA testing and renewing his request for

a court order requiring their cooperation. By judgment entry filed

January 20, 2009, the trial court denied defendant's motion for an

order requiring the alternate suspects to submit samples for DNA

testing and dismissed defendant's second application for DNA testing.

State v. Caulley, No. 09AP-172, 2009 WL 3633815, at *1-3 (Ohio App. 10th Dist. Nov. 3, 2009). 

Petitioner timely appealed, raising the following assignments of error: 

ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ERRED BY DENYING CAULLEY'S

MOTION FOR AN ORDER REQUIRING ALTERNATE

SUSPECTS TO SUBMIT ORAL SAMPLES SUITABLE FOR DNA

TESTING WHEN THESE ORAL SAMPLES WERE NECESSARY

TO VINDICATE CAULLEY'S CONSTITUTIONAL RIGHT TO

ESTABLISH HIS INNOCENCE THROUGH DNA TESTING.

ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT ERRED BY DENYING CAULLEY'S

SECOND APPLICATION FOR DNA TESTING WHEN

ADDITIONAL DNA TESTING WOULD YIELD OUTCOME

DETERMINATIVE RESULTS.

Id. at *3. On November 3, 2009, the appellate court affirmed the judgment of the trial court. Id. 

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On May 3, 2010, the Ohio Supreme Court dismissed Petitioner’s subsequent appeal. State v.

Caulley, 124 Ohio St.3d 1494 (2010).

Represented by the Ohio Public Defender, on March 3, 2011, Petitioner filed the instant

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleges that he is in the custody

of the Respondent in violation of the Constitution of the United States based upon the following

grounds: 

1. Caulley is actually innocent of the crimes for which he is convicted. 

His convictions violate the U.S. Constitution. . . . 

2. Caulley’s rights to counsel, a fair trial, and due process were

violated when the trial court admitted his confession into evidence,

when that confession was involuntary and inadmissible. . . . 

3. Caulley’s constitutional right to due process was violated when the

trial court erroneously prohibited Caulley from introducing

exculpatory evidence. . . . 

4. Caulley is entitled to habeas relief because the State suppressed

material, exculpatory evidence in violation of Brady v. Maryland, 373

U.S. 83 (1963) and despite assurances to the contrary, the trial court

failed to review the State’s investigation file for exculpatory evidence.

. . . 

5. Caulley’s right to a fair trial was violated when a judge, who was

a former prosecutor, was allowed to testify and present irrelevant,

prejudicial testimony. . . . 

6. Caulley’s right to a fair trial was violated when the trial court

admitted testimony concerning threats made by the defendant, when

that testimony was inadmissible. . . . 

7. Caulley is entitled to habeas relief because of trial counsel’s

ineffectiveness. . . . 

8. Caulley’s due process rights were violated because appellate

counsel failed to render effective assistance in his first appeal of right.

. . . 

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9. Caulley is entitled to habeas relief because the State and the trial

court violated his constitutional right to due process when they denied

meaningful access to the physical evidence in order to conduct DNA

tests. . . .

10. A trial court, consistent with the Due Process and Equal

Protection Clauses of the Fourteenth Amendment, cannot arbitrarily

deny petitioners the right to file pleadings timely tendered in good

faith. . . . 

11. Caulley deserves habeas relief because his constitutional rights

were violated when the trial court denied his Motion for Order

Requiring Alternate Suspects to Submit Oral Samples Suitable for

DNA Testing when these oral samples were necessary to vindicate

Caulley’s constitutional right to establish his innocence through DNA

testing. . . .

12. Caulley’s constitutional rights were violated because of the

cumulative effect of multiple errors at his trial.

It is the position of the Respondent that these claims to provide a basis for federal habeas corpus

relief. 

Subsequent to the filing of his federal habeas corpus petition, again represented by counsel,

on April 20, 2011, and June 21, 2011, Petitioner filed a motion for leave to file a delayed motion for

a new trial and a motion for a new trial, asserting his trial counsel acted under a conflict of interest

prior to and during trial by having a sexual relationship with Petitioner’s wife, and that Petitioner was

unable earlier to discover the basis for this claim. Exhibit 101 to Return of Writ. According to

Petitioner, he learned about the affair from his ex-wife almost fourteen years after trial. See id. On

July 11, 2011, Petitioner filed a Motion for Leave to Amend the Petition with the following additional

claim: 

13. Caulley’s right to a fair trial and due process was violated when

his trial counsel was operating under a conflict of interest while

representing Caulley in his capital trial. . . . 

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Motion for Leave to Amend the Petition, Doc. 10. On the same date, Petitioner filed a motion to

stay proceedings pending exhaustion of this claim in the state courts. Doc. 11. 

Respondent opposes Petitioner’s motion to amend the petition, arguing that the claim is timebarred under Mayle v. Felix, 545 U.S. 644 (2005), because it differs in time and type from those

claims raised in Petitioner’s timely habeas corpus petition. Respondent additionally contends that

Petitioner failed to exercise diligence in discovering the factual predicate for his claim so as to render

the claim timely filed under 28 U.S.C. § 2244(d)(1)(D).1

 According to Respondent Petitioner has

failed to establish he exercised diligence in learning the factual predicate for his claim, because he

never asked Carey Gravelle, his ex-mother-in-law, whether his wife had been having sexual relations

with his attorney prior to and during his trial, and should have so inquired. See Respondent’s

Memorandum in Opposition, Doc. 12. Respondent similarly opposes Petitioner’s request for a stay

of proceedings, arguing Petitioner likewise has failed to establish good cause for failing to exhaust

his claim and that the record fails to reflect Petitioner’s unexhausted claim is potentially meritorious. 

See Respondent’s Opposition to Motion to Stay, Doc. 13; Rhines v. Weber, 544 U.S. 269, 274

(2005)(a stay and abeyance of habeas corpus proceedings is appropriate only where the petitioner

establishes good cause for failing to exhaust his claim and his claim is potentially meritorious). 

1

 28 U.S.C. 2244(d)(1) provides: 

A 1-year period of limitations shall apply to an application for a writ of habeas

corpus by a person in custody pursuant to the judgment of a State court. The

limitations period shall run from the latest of – 

***

(D) the date on which the factual predicate of the claim or claims presented could

have been discovered through the exercise of due diligence. 

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Respondent’s arguments are not persuasive. On September 8, 2011, the trial court issued a

Nunc Pro Tunc Entry concluding to the contrary: 

The new evidence slowly came to light years after the defendant’s

conviction. The evidence was of an ambiguous nature when one

considers it in terms of showing guilt or absence thereof. . . . [T]he

evidence in this case involved a question of legal ethics, and without

a lot of investigation by the defender’s office, little or nothing to

indicate a reasonable expectation of a new trial. 

Up until early this year defendant had insufficient evidence available

to him to proceed with his effort to gain a new trial. Given his

situation in prison and estranged from his ex-wife and prior lawyer,

prevention of the discovery of meaningful evidence was unavoidable. 

It would seem that time considerations have never been a factor in this

matter. It took two or three years between the termination of the

active investigation of this case and the interrogation of the defendant

in Texas and many more years before the development of the details

of the affair giving rise to this issue. 

Exhibit 4 to Respondent’s Supplemental Response, Doc. 18. The affidavit of Celeste (Caulley)

Bowman, Petitioner’s ex-wife, dated February 9, 2011, indicates in relevant part: 

I never told Bob about the affair. Bob ultimately found out about the

affair from his sister, recently. The first time I discussed the affair

with Bob was briefly during my first visit with him in over 12 years in

June 2010. I have since learned that Bob apparently believed that the

affair was solely post-trial. Bob didn’t know until approximately one

month ago that the affair began pre-trial and lasted through the trial. 

We’ve now discussed that fact over email through the prison. 

My mother has been pleading with me for years to come forward

regarding the affair with Jim. After visiting Bob for the first time in

twelve years in June 2010, I had renewed feelings of guilt concerning

the affair with Jim. Because of those feelings as well as my mother’s

insistence, I decided to come forward. In January 2011, I sent an

email to Kim Rigby, Assistant State Public Defender, who currently

represents bob, explaining my and Jim’s relationship. . . . 

See Exhibit 101 to Return of Writ. Petitioner indicates in his affidavit that he learned from his sister

and mother-in-law “a few years ago” that his ex-wife and attorney had an affair “[b]ut by that time,

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the whole thing was water under the bridge. My ex-wife and I hadn’t spoken in several years, and

we had been long-divorced.” See id. 

I always assumed that this affair was solely post-trial. It was not until

January, 2011 that I first heard that the affair started pre-trial and

continued during trial. I was completely shocked. . . . I never would

have guessed that Jim and Celeste were in a sexual relationship at that

time.

Id. 

As noted by the state trial court, nothing in the record reflects that Petitioner had any reason

to believe his attorney and ex-wife were having a sexual relationship or ongoing affair prior to and

during the time of his trial prior to the disclosure thereof, in January 2011. This Court thus concludes

Petitioner has established his unexhausted claim is timely under 28 U.S.C. § 2244(d)(1)(D). 

Petitioner’s request to amend the petition, Doc. 10, is GRANTED. 

As to Petitioner’s request for a stay,

[A] stay and abeyance is only appropriate when the district court

determines there was good cause for the petitioner's failure to exhaust

his claims first in state court. Moreover, even if a petitioner had good

cause for that failure, the district court would abuse its discretion if it

were to grant him a stay when his unexhausted claims are plainly

meritless. Cf. 28 U.S.C. § 2254(b) (2) (“An application for a writ of

habeas corpus may be denied on the merits, notwithstanding the

failure of the applicant to exhaust the remedies available in the courts

of the State”).

Rhines v. Weber, 544 U.S. at 277. Petitioner has established good cause for failing to exhaust his

claim in the state courts. He was unaware of the basis for his claim, and unable reasonably to learn

of the basis for his claim until his ex-wife disclosed the relationship, long after his convictions and

appeals had concluded. Moreover, the record fails to reflect that Petitioner’s claim is plainly

meritless. On January 10, 2012, after a hearing, the trial court granted Petitioner’s request for a new

trial. Exhibit 16 to Respondent’s Supplemental Response, Doc. 18. Respondent’s appeal currently

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remains pending. Moreover, depending on the results of that appeal, the claims currently pending

before this Court may become moot. 

Petitioner’s Motion for Leave to Amend the Petition, Doc. 10, is GRANTED. Petitioner’s

Request for a Stay, Doc. 11, also is GRANTED. 

Petitioner is DIRECTED to keep the Court advised of the status of state court proceedings. 

IT IS SO ORDERED. 

 /s/ George C. Smith 

GEORGE C. SMITH

United States District Judge

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